THE AURIT CENTER

THE COMPLETE GUIDE TO MILITARY DIVORCE IN ARIZONA

military divorce

By Andrew Weber

MEDIATING YOUR MILITARY DIVORCE
Disclaimer: This information is intended to provide general guidance and is subject to change without notice. Discuss how the contents of this article apply to your specific circumstances with a legal professional to ensure that you have the most up-to-date information.

INTRODUCTION

If you are considering divorce or legal separation, and you or your spouse are active duty service members, you likely have a number of questions. To make your process easier, we will address the relevant considerations and provide you with information to help you make necessary and important decisions.

Although, compared to civilian divorce, military divorce can be complicated— we are here to help ease your stress and strain. The mediators at The Aurit Center for Divorce Mediation are experienced and can guide you through your Arizona military divorce.

We are here to help you every step of the way.

Undoubtedly, military divorce presents unique challenges that make it more important than ever to carefully select how you want to complete your process, either by:

  • litigating in court with divorce attorneys or
  • mediating with professional family mediators from the comfort of our home.

The Aurit Center provides all mediation services online, to include your meetings, documentation review and e-notarization signing services. In mediation, you never go to court. We offer a complimentary online consultation to help you and your spouse understand the process and to answer your questions. When you are ready, you can schedule your consultation here.

How you choose to complete your divorce will greatly affect your finances and your emotional stress and strain. Financial considerations include legal fees, division of property, and the costs of separate living arrangements. Emotional considerations include adapting to time away from your children and adjustment to a new lifestyle. The military’s Family Readiness Center offers assistance for military members and their dependents. To learn more about the differences between litigation and mediation, we offer our article: Divorce Litigation vs. Mediation: How Divorce Mediation Can Prevent War.

Below, we will describe the considerations of the military divorce process, providing you with general information followed by more specific information based upon whether you choose:

Litigating Divorce with Attorneys in Court; or Mediating Divorce without Ever Going to Court.

We hope this information will help you in determining how best to move forward with your process. The Aurit Center is dedicated to lighting a path of peace, and hope for families. However, you choose to move forward, we are wishing you and your family all the best.

MILITARY VS. NON-MILITARY DIVORCE (Civilian Divorce)

The term ‘military divorce’, as opposed to ‘civilian divorce’ is any divorce that involves at least one spouse currently serving in a military branch (Army, Air Force, Marine Corps, Coast Guard, Navy or Space Force) as a military service member. Like all divorce, the focus is on three major categories:

Parenting Plan (Legal Decision-Making, Parenting Time, and Child Support) for spouses with children;
Division of Assets and Debts; and Spousal Support.

Military divorce is unique in that federal laws and military regulations apply, which do not apply in a civilian divorce. Military divorce is also affected by the state laws and local procedures that apply to non-military or civilian divorce.

HOW TO BEGIN

If you decide that you want to pursue a military divorce or legal separation, you will need to decide where to file for divorce. You have a variety of options as to where to file. It is often best to file in the United States whenever possible.

Military spouses are allowed to file in the state in which the:

  • Service Member currently resides; or
  • Service Member has legal residency; or
  • Non-Military Spouse resides.

In Arizona, residency requires that the person be living or stationed there for at least 90 days.

It is important to thoroughly research the divorce laws of the state in which you intend to file, as it can have important implications regarding child custody, support, spousal maintenance and property division. States’ rules regarding divorce vary greatly and the state in which you file can greatly impact outcomes. You can reduce your strain by talking with experienced military divorce professionals.

The Aurit Center, our mediators are licensed attorneys and we offer a complimentary initial consultation to explain the mediation process and to answer your questions. Arizona is a community property state, which means divorces filed in Arizona will have approximately equal division applied to the community property.

To have the most efficient process possible, seek out professionals who offer free consultations and who have transparent billing policies. Ideally, select professionals who offer all inclusive flat-fees to help keep costs low. Divorce lawyers will typically require a retainer and bill hourly, which can continue to add up depending upon the length of your process. Doing a little research now, can help you a great deal, further on in your process.

The Aurit Center offers personalized flat fees for your entire mediation process. Flat fees provide predictability and support your financial stability.

FILING OVERSEAS UNDER THE HAGUE CONVENTION

Filing when serving in another country may be possible, but is dependent upon a multitude of factors and often requires the assistance of attorneys, professional mediators or other family law experts. While most states recognize dissolution decrees from foreign countries, there is a risk that a decree may be rejected if certain procedural measures were not followed. Consult with a legal advisor or military divorce attorney prior to filing for divorce or legal separation in a foreign country to ensure that all necessary requirements are met.

ACCEPTANCE OF SERVICE AND THE CIVIL RELIEF ACT (SCRA)

Litigating Divorce with Attorneys in Court

In Arizona, when spouses choose to complete their process with divorce attorneys in court, the spouse not filing the petition for divorce must be personally ‘served’ with the legal documentation so that they have an opportunity to respond to the petition by filing an answer. When the spouse receives and accepts the documentation it is referred to as an acceptance of service.

Serving divorce papers to a military member can prove especially challenging when they are deployed, stationed overseas, or on a ship. Under Rule 4.2 of the Arizona Rules of Civil Procedure, service must comply with the relevant Arizona laws, the foreign country’s laws where the service member is stationed, and the Hague Convention or other international treaties, as applicable.

If a service member fails to make an appearance, they risk facing a default judgment that could dictate parenting time, legal decision-making authority, and other important parenting issues. After a failure to appear for a hearing, under § 3931 of SCRA (Service Members Civil Relief Act), they have two potential options for legal protection:

  1. filing a ‘stay of proceedings’, which would provide the service member with
    more time to prepare their case; or
  2. following the court granting a ‘default judgement’ (essentially granting the terms as described in the petition), requesting that the court reopen the judgment to allow the service member to present their defense.

Mediating Divorce without Ever Going to Court

In Arizona, when spouses choose to complete their divorce process in mediation, no one gets ‘served’. The Aurit Center for Divorce Mediation’s clients are able to sign all divorce papers, to include the petition and the acceptance of service online and neither party is served.

Additionally, The Aurit Center provides online notarization services, which allow active duty service members to sign all necessary documentation in a convenient and timely manner. We file the divorce papers with the court on your behalf, reducing your stress and efficiently moving your process forward. Meditation means never going to court.

PARENTING

PARENTING TIME AND LEGAL DECISION-MAKING AUTHORITY

One of the biggest challenges military families face is deployment. Due to the often transient nature of military life, there are laws that apply specifically to parenting time (child custody) and legal decision-making when either of the spouses reside outside of Arizona, including those stationed overseas.

Litigating Divorce with Attorneys in Court

In litigation with divorce lawyers, absent the parties’ having a mutual agreement, parenting time and legal decision-making authority is determined based on the best interests of the children. The Judge makes the final decisions and their orders often lack care, creativity, or personalized warmth around details that can greatly affect parent-child relationships. Unfortunately, the orders coming down from the court are often less than ideal for either of the parents or their children.

Mediating Divorce without Ever Going to Court

In mediation, we help parents to develop creative agreements that best fit their needs and the needs of their children. Parents maintain control and make the final decisions. Our experienced mediators have developed unique military parenting time schedules where FaceTime sessions between children and their deployed parent support the need for frequent contact. Additionally, we can build flexible parenting time into the parenting agreement which can guarantee a deployed parent additional parenting time while on leave, balancing time for parents.

The Aurit Center offers expert help with the difficult discussions that help you develop realistic parenting time agreements, in the face of potential deployment or permanent change of station (PCS). Providing continuity for the children is vital and at The Aurit Center we believe parents can have a healthy process that best supports their children’s needs, as well as their own.

TEMPORARY ORDERS / PARENTING PLAN MODIFICATION

Some parents adjust their parenting plan as they are faced with deployment or PCS. Some use a temporary custody order, which is an agreement to transfer custody to the non-military parent before mobilization and to transfer custody back to the service member parent after mobilization ends. Parents can also request changes to the parenting plan, including changes to child support, when there are significant changes in circumstances, but the criteria are strict. These changes are made through the process of modification.

Litigating Divorce with Attorneys in Court

Under A.R.S. § 25-411, the service member’s absence which is caused by deployment, or relocation which is due to deployment, cannot be the sole factor to allow a parent to request a modification to their current parenting plan.

Modifications have several limitations. A.R.S. § 25-411 provides that, without the spouses having a agreed to a specific modification in advance, there will be a “motion of absence” (meaning one spouse is absent due to deployment, reserve activation, or mobilization) the court will have a hearing and shall enter a ‘temporary order’ to modify the parenting agreement, if the parent who is a service member shows they have received notice for deployment or mobilization and that it will impact their ability to be present for their child. The ‘temporary order’ would exist until after the service member returns, and then the original parenting plan would be reinstated.

Mediating Divorce without Ever Going to Court

In mediation with The Aurit Center, we help parents to design their own plans in the event of deployment or PCS. We believe that parents have the best understanding of how military service will impact their ability to be present for their child as well as the unique needs of their children. Service members can come to mediation meetings prepared with a list of possible deployments, trainings, and/or PCS orders, and the parenting plan can be developed around the various possible scenarios.

CHILDREN LIVING IN ANOTHER STATE OR OVERSEAS

Under the Hauge Convention Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), there are several ways that a court has the power to make child custody determinations. However, there remains the issue of whether any such determination would be enforceable in another state or overseas.

Under Article 13 of the Hague Convention, the country where a service member and child are located has the discretion in whether to enforce an order by an Arizona court that would ultimately require the child to be sent back to the United States.

Although there are regulations in place in each branch of the military armed forces, ordering service members to honor their responsibilities and court orders, the Hague Convention would still dictate what process the parent must follow. That is, of course, unless the parents agree to instead undergo mediation and avoid a long and rigid process.

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MARITAL PROPERTY DIVISION (ASSETS AND DEBTS)

As mentioned earlier, Arizona is a community property state, meaning that spouses are generally, with exceptions and still at the equitable discretion of the courts, entitled to half of all the property acquired during the marriage, absent an agreement that states otherwise.

The division of marital property in a military divorce presents unique issues concerning:

  • Veterans Affairs (VA) Guaranteed Mortgages,
  • Retirement Accounts, and
  • Health Care.

Below we will explore each of these.

MORTGAGES AND THE VA GUARANTEED HOME LOAN

In both litigation and mediation, where a mortgage is Non-VA, there are typically no restrictions as to how the spouses can choose to divide their residence. However, when purchasing a home, service members typically take advantage of one of their biggest benefits, the VA Guaranteed Home Loan.

In litigation, one complication is how to divide the real estate. The complications associated with a VA guaranteed home loan result from the Occupancy and Eligibility Requirements that are unique to a military divorce in cases where selling the home is not a realistic option. This creates real confusion among divorce lawyers and judges, as the VA is unclear about how to handle a VA guaranteed home loan in the case of a divorce. What is clear, is that in respect to the occupancy requirement, the VA requires that either the service member, their spouse, or a dependent child must occupy the home.

Litigating Divorce with Attorneys in Court

In litigation, unless the attorneys and the judge are aware of the Occupancy and Entitlement Requirements decisions can be made that do not meet the military requirements, creating a very complicated situation for everyone concerned.

Mediating Divorce without Ever Going to Court

In mediation, we guide you through the complexities of the VA Guaranteed Home Loan. Our mediators can explain the law and help you develop unique agreements that best meet your needs. We provide you with referrals to other professional services as needed to ensure your process is as efficient and effective as possible.

UNIFORMED SERVICES FORMER SPOUSES’ PROTECTION ACT (USFSPA) AND RETIREMENT BENEFITS

Litigating Divorce with Attorneys in Court

Under the USFSPA, military retirement benefits are treated as community property, also referred to as marital property. As such, the military retirement benefits are subject to being equitably divided, to each ex-spouse, by a judge in state family court.

Mediating Divorce without Ever Going to Court

In mediation, we help our clients find agreements that they believe to be truly fair and in the best interest of their family. Even if spouses agree on what should be considered community property and in which they each have an equal interest, there may be certain items that they each care more about than others, regardless of monetary value. Also, there are some ways to divide or allocate community property that are less expensive than others. For example, while the spouses may agree that a military retirement account should be considered community or marital property, they may also recognize the associated cost with dividing that account and how it would affect retirement pay.

Virtually any military retirement account will require a Qualified Domestic Relations Order (QDRO) to be drafted and executed to facilitate its division, whether the spouses agree to divide it in mediation or the division is ordered by a judge in court. Having a QDRO drafted is an additional cost. But in mediation, spouses can agree that the non-military spouse may forgo their interest in that account in exchange for a greater allocation of other assets, ultimately saving them both money.

TRICARE SPOUSE ENTITLEMENT

Service member health care benefits are dependent upon length of service. There are two broad categories of benefits available to those who:

  1. served for at least 20 years; and
  2. did not serve for 20 years.In the first category, there are two ways benefit determination is made:

20/20/20

  • 20 years of service, and
  • 20 years of marriage, and
  • the 20 years of marriage overlaps the 20 years of service.

In this case, the non-service member ex-spouse would be eligible to have their own plan, under their own name, along with commissary and exchange benefits.

20/20/15

  • 20 years of service; and
  • 20 years of marriage; and
  • The marriage overlaps the service for at least 15 years.

In this case, the non-service member ex- spouse would be eligible for TriCare for up to 1 year after the divorce is final.

For service members with less than 20 years of service, the Department of Defense Continued Health Care Benefit Program Coverage is an option. This plan is similar to TriCare and covers pre-existing conditions, including pregnancy. The plan must be purchased quarterly, and an ex-spouse may retain the plan for 36 months after the loss of eligibility for military medical care.

Service member’s ex-spouses are eligible for Continued Health Care Benefit Program (CHCBP), which is the military version of COBRA, for a period of 3 years following divorce. As long as the spouse 1) remains unmarried and 2) was awarded a share of the military retirement pay or Survivor Benefit Program (SBP), they may remain on CHCBP for life.

MILITARY PENSION

All 50 states treat military pensions as community property. Thus, the court would say that each spouse has a community property interest, or marital property interest, in the pension benefits. The only way to divide a military pension would be the execution of a Qualified Domestic Relation Order (QDRO). A QDRO addresses:

  • how benefits should be divided (e.g., 50/50); and
  • whether the non-military spouse shall receive a proportionate share of any cost-of-living or other post-retirement adjustment/increases; and
  • whether, and in what percentage, the non-military spouse shall also be awarded a survivor benefit/annuity.

There is a common misconception that if a servicemember and civilian were married for fewer than 10 years, the civilian spouse is not entitled to any of the servicemember’s pension benefits under what is known as the 10/10 Rule. According to 10 U.S. Code § 1408(d), following a dissolution of marriage, a former spouse who has at least 10 years of marriage, overlapping 10 years of creditable military service, may apply for direct payment of the retirement from the Defense Finance & Accounting Service (DFAS)

Important to note, this does not mean that if the marriage lasted fewer than 10 years, the court cannot award the civilian spouse a portion of the pension. Instead, if the marriage does not meet the requirements of the 10/10 Rule, the military spouse will need to directly pay the civilian spouse their portion of the pension.

SPOUSAL SUPPORT AND CHILD SUPPORT

Calculating financial support in a military divorce comes with an additional layer of responsibility and standards. In addition to state laws related to child support and spousal support, and in the absence of a mutual agreement, the service member may be subject to specific military regulations.

For example, Army Regulation 608-99(1-5)(a) prohibits the use of military status to deny financial support to family members or evade court orders on financial support, child custody and visitation, and other matters. Additionally, soldiers are required to manage personal affairs in a manner that does not bring discredit upon the U.S. Army, including:

  • maintaining reasonable contact with family members so that financial need and welfare do not become a concern for the Army;
  • conducting themselves honorably with regards to parental responsibility; and
  • providing adequate financial support.

CHILD SUPPORT

Litigating Divorce with Attorneys in Court

Under Ariz. Rev. Stat. § 25-320, courts determine the amount of child support based on the Arizona State Child Support Calculator that looks at the gross income of both parents. In litigated divorce proceedings, the guideline amount is generally utilized by the court, however, the Judge has ultimate discretion to award child support based on their perceived best interests of the children.

In divorce mediation, the Arizona State Child Support Calculator is used as the child support guidelines to show the parties what a judge might order, providing a foundation upon which the spouses can build a plan and make decisions about what level of child support, if any, makes sense for them, based on the best interests of their children.

If the service member has filed a ‘stay of proceedings’ under the SCRA (Service Members Civil Relief Act), calculating child support can be a complicated process. Finances may be tight for the civilian spouse and child support may be greatly needed. Thankfully, most military armed forces have regulations in place which allow them to determine a temporary child support payment plan based on their own calculators, child support guidelines, or methods of establishing child support.

Mediating Divorce without Ever Going to Court

The good news is that these issues can be avoided by having a professional family mediator guide a creative collaboration. Mediation is based upon the belief that spouses best understand their needs and how best to meet them, to include child support. When spouse’s remain in control of the child support agreement, there is better continued adherence. Children benefit from having two financially stable homes. The Aurit Center can help you develop a child support plan that meets your needs.

SPOUSAL MAINTENANCE (ALIMONY)

Under Arizona law A.R.S. § 25-319, in a divorce or legal separation proceeding, the court may order one spouse to pay the other, what is often referred to as, spousal maintenance, or spousal support, if it finds that the receiving spouse:

  • lacks sufficient property to provide for their reasonable needs;
  • is unable to be self-sufficient through appropriate employment given their earning capacity or because they are the custodian of a child whose age or condition is such that they should not be required to seek such employment;
  • has made significant contributions to the other spouse’s education, career, or earning ability;
  • had a marriage of long duration and is now of an age that precludes them from obtaining employment by which they can be self-sufficient; or
  • has significantly reduced their own income or career opportunities for the benefit of the other spouse.

The court will determine the amount and may also determine the duration for which payments must be made. Additionally, they will determine how the spousal maintenance requirement can be terminated, and if and how it may be modified.

It is important to note that the Defense Finance and Accounting Service (DFAS) will require a copy of the order before they will dispense any portion of that service member’s pay directly to a former spouse. If the court orders spousal maintenance payments to go anywhere other than directly to the former spouse, the DFAS will not relinquish the service member’s pay. Although, during negotiation it may seem convenient to have the service member contribute to the former spouse’s education or business enterprise as part of the spousal maintenance order, in reality, because of the way funds must be dispensed, it can result in costly complications.

Courts sometimes order garnishment of wages or property, in divorce cases where one spouse fails to pay the other what the court has instructed, but they are limited in what they may garnish from a service member. Federal law stipulates that if the service member is providing for a new spouse or child, 50% of the service member’s pay is the maximum amount the court may garnish. If the service member remains single with no new children, federal law allows the court to garnish up to 60% of the service member’s pay.

MEDIATING YOUR MILITARY DIVORCE

We hope you consider mediating your military divorce and remain in control of your agreements. No judge is likely to understand the plethora of issues unique to a military divorce better than you and your spouse. A professional mediator will guide a simple, respectful process that will allow you to craft tailor-made agreements for all divorce issues. Contact us today to schedule your free consultation.

Resources
My Military Divorce Taught Me 7 Important LessonsLaQuista Erinna
Uniformed Services Former Spouses Protection Act
Continued Healthcare Benefit Program
Transitional Healthcare Coverage
Military Family Readiness System
How to find a Military Divorce Lawyer

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